The Liability System of the Rotterdam Rules Particularly in Light of Air Transport. Lalli Castrén/The Liability System of the Rotterdam

Transcription

1 The Liability System of the Rotterdam Rules Particularly in Light of Air Transport

2 The Montreal Convention Convention for the Unification of Certain Rules for International Carriage by Air (Montreal, May 28, 1999) Governs international carriage of passengers, baggage and cargo by air Applies to all international carriage of [ ] cargo performed by aircraft for reward Not to contracts of carriage by air!

3 Scope of Application Carriage to be performed by several successive carriers is deemed [...] to be one undivided carriage if it has been regarded by the parties as a single operation (art. 1 (3)) Thus an agreed Heathrow-Rovaniemi would be a fully international transport, even if the routing was LHR- HEL-RVN In the case of multimodal transport, the MC only applies to the carriage by air (art. 38)

4 What is Carriage by Air? The period during which the cargo is in the charge of the carrier NOT any carriage by land, sea or inland waterway performed outside an airport UNLESS such carriage takes place in the performance of a contract for carriage by air for the purpose of loading, delivery or transhipment WHEN damage is presumed, subject to proof to the contrary, to have resulted during carriage by air

5 Loading, Delivery and Transshipment Ancillary to the air carriage HEL-Helsinki, probably As would a transhipment between CDG and ORY Paris-Dublin wasn t Impossible to draw an exact line. Helsinki-Tampere? BRU-LHR? Only creates a presumption, doesn t, in effect, expand the scope of application of the MC Still important in the case of unlocalized damage

6 Trucking (aka Low Flying Aircraft) MC: If air transport is replaced for the whole or in part by another transport mode without the consent of the consignor, the transport is deemed to be within the period of carriage by air (art. 18 (4)) Trucking = (unilaterally) replacing air transport with another type, generally road transport (lack of space on aircraft etc.) Standard contract terms allow for airlines to undertake the transport with the mode of their choosing Generally places trucking outside the scope of art. 18 (4) even if it might not have been the original intention

7 Air & Sea Generally a rare combination, so Rotterdam/ Montreal conflicts shouldn t exist? Trucking might count as sea transport in some situations Generally would be either under CMR (English interpretation, Quantum) or completely outside the unimodal regimes (German interpretation, BGH 17 Jul. 2008) CMR/Rotterdam ro-ro; events intrinsic to the other type of transport (CMR art. 2) Limited to exceptional situations Similarities between the delivery/loading expansion and the Rotterdam solution?

8 Montreal Liability Rotterdam Strict 19 SDR/kg Unbreakable(?) No global limit Negligence Higher of 3 SDR/kg or 857 SDR/unit personal act or omission of the person claiming a right to limit done with the intent to cause such loss or recklessly and with knowledge that such loss would probably result Global limitation applies

9 Thank you for your interest! Tel.: +358-(0)